In re A.S. CA4/3

Filed 2/25/13 In re A.S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re A.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, G046454 Plaintiff and Respondent, (Super. Ct. No. DL039143) v. OPINION A.S.,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed as modified. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

The minor, A.S., appeals from a dispositional order following findings by the juvenile court (on two separate petitions) that he committed the following crimes: aggravated assault, harassing telephone calls, battery with serious bodily injury, and public fighting. A.S. challenges the trial court‟s decision when setting the maximum term of confinement. First, A.S. argues, and the Attorney General agrees, the trial court should have stayed the term for count 3 (public fighting) pursuant to Penal Code section 6541 because it was committed with the same intent as counts 1 (aggravated assault) and 2 (battery with serious bodily injury). Second, A.S. contends the trial court erred by imposing consecutive terms automatically without understanding its discretion to impose concurrent terms. Finding only A.S.‟s first argument has merit, we modify the dispositional order to indicate the maximum term of confinement is fixed at seven years and two months, and we affirm the order as modified. I A. Petition 1 This petition, filed in December 2010, alleged A.S. made misdemeanor harassing telephone calls. (§ 653m, subd. (a).) The juvenile court placed A.S. on informal probation and ordered him to complete 40 hours of community service. When the court learned A.S. failed to comply with the terms and conditions of probation, it terminated probation and reinstituted the proceedings. B. Petitions 2 & 3 In November 2011, the district attorney filed another petition alleging A.S. committed aggravated assault (§ 245, subd. (a)(1), count 1); battery with serious bodily injury (§ 243, subd. (d), count 2); disturbing the peace/public fighting (§ 415, subd. (1), count 3). One week later, the district attorney filed a third petition, which was an amendment, to add a great bodily injury enhancement (§ 12022.7, subd. (a)). Later, the